Office for Civil Rights Clarification on School Obligations to Students with Disabilities in Athletics
WIAA Release on OCR Clarification on School Obligations to Students with Disabilities in Athletics
A joint publication of the Wisconsin Department of Public Instruction and the Wisconsin Interscholastic Athletic Association, the Pupil Nondiscrimination Guidelines for Athletics reviews implementing Section 118.13 of the Wisconsin statutes and PI 9 of the Wisconsin Administrative Code.
Download the Pupil Nondiscrimination Guidelines for Athletics (PDF).
U.S. Department of Justice Title IX Legal Manual
The following is and excerpt from the "Pupil Non-Discrimination Guidelines For Athletics" co-published by the WIAA and DPI and available from WIAA member schools and the DPI.
Discrimination in interscholastic athletics in Wisconsin has been an item of increasing concern since the 1970-71 school year, when swimming, gymnastics, and track for girls were given state tournament status by the Wisconsin Interscholastic Athletic Association (WIAA). Additional girls' sports were added to the WIAA list each year until the number totaled ten in 1982-83. As of 2004, the state interscholastic program includes 11 sports for girls and 13 sports for boys.
The growth of girls' sports in Wisconsin coincided with the passage of Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in federally funded educational programs. Title IX gave needed impetus for the development of girls' interscholastic sports and expanded opportunities in all educational programs and activities.
Although discrimination exists in many forms, most discrimination problems in interscholastic athletics have been based historically on sex. In the 1997 edition of the guidelines, we begin to address other discriminatory factors, but will continue to draw on thebulk of case law and interpretations by the Office for Civil Rights, which focus on sex or gender.
In the years since 1972, nearly all Wisconsin school districts have experienced some problems in providing equity between the boys' established programs and the girls' growing programs. Problems frequently encountered included developing equitable budgets, sharing facilities, providing comparable facilities, transporting athletes, and scheduling games. Other problems arose in providing publicity, assigning bands and cheerleaders to games, and maintaining consistent athletic codes. Most of the problems at the school-district level have been settled by enlightened leadership and compromise, but it is not unusual for controversies to result in complaints, frequently through the federal Office for Civil Rights or litigation through the courts.
At the state level, it has been necessary for WIAA to change long-standing rules. For example, WIAA rules prohibited all competition between boys and girls. In 1978, the U.S. District Court ruled that qualified girls must be allowed to participate on boys' teams if no girls' team is offered in a sport. This decision, which applies to both contact and noncontact sports, is consistent with other court decisions throughout the country. As a result of this ruling, the WIAA changed its rule.
A number of sex-related athletic problems have yet to be resolved. Equal offerings of some WIAA sports to girls and boys during fall, winter, and spring seasons, reaching agreement at local and conference levels regarding the scheduling of activities on given days of the week, and providing equitable media coverage for boys' and girls' activities are problems that remain to be fully solved.
Although in 1984, the U.S. Supreme Court (in Grove City College v. Bell, 465 U.S. 555, 1984) cast serious doubts about the applicability of Title IX to programs such as athletics that receive no direct federal funds, the Civil Rights Restoration Act of 1988 has clarified this point and established that Title IX applies to all programs and activities.
In 1992, the United States Supreme Court decided that monetary damages may be awarded for sexual harassment under Title IX (Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 1992). This decision has caused school districts to approach ques-tions of gender equity with a greater sense of urgency, and to focus on the issue of sexual harassment in interscholastic athletics. To address this emerging and important issue, we have included the appendix section on preventing harassment, hazing, and assault.
In 1985, the Wisconsin Legislature repealed and recreated section 118.13, Wis. Stats., which prohibits discrimination in public schools on the basis of sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation, or physical, mental, emotional, or learning disability. Section 118.13(2), Wis. Stats., requires school boards to develop policies and procedures, including a complaint procedure, to implement the statute (see Pupil Nondiscrimination Guidelines, DPI Bulletin No. 94050). Section 118.13, Wis. Stats., also requires that the state superintendent decide appeals of the school districts' final decisions on complaints. The statute also authorizes the state superintendent to review school district compliance with the statute and provide school districts with technical assistance.
The issue of whether some mascots, logos, and nicknames used by school athletic teams are discriminatory and offensive began to be widely debated in the press and other public forums in 1991. Some districts and the department received complaints about discriminatory logos and mascots. In 1992, the state superintendent requested an opinion from the Attorney General on the subject of whether American Indian logos, mascots, and nicknames come within the purview of the pupil nondiscrimination statute and its rule. The opinion is straightforward and clear, stating that the use of such logos, mascots, and nicknames is clearly within the purview of the law. Further, the Attorney General found that the administrative rules in PI 9, Wis. Admin. Code, which define the statutory language "discrimination," "pupil harassment," and "stereotyping" are a valid interpretation of the statute. Evaluations of whether a particular use by a school district of an American Indian logo, mascot, or nickname is discriminatory must be made on an individual, case-by-case basis. Discrimination which meets the definitions of either stereotyping or pupil harassment must be shown to be detrimental to constitute a violation of the law. Finally, it is not a necessary element of a finding of discrimination to prove that the district intended to discriminate by adopting such logos or mascots. School districts using mascots, logos, and nicknames which have single gender or ethnic group connotations could be in violation of s. 118.13 and PI 9. In 1994, the state superintendent urged school districts to review their logos and mascots in light of the Attorney General's opinion to determine whether a change was in order.
The Department of Public Instruction and the WIAA have prepared a publication called "The Pupil Non-Discrimnation Guidelines For Athletics" available through public schools to provide guidelines for athletic decision makers at the local and conference levels. The guidelines are based upon the spirit and regulations of Title IX, appropriate case law, WIAA rules, section 118.13, Wis. Stats., and PI 9, Wis. Admin. Code, in addition to valuable assistance from professional organizations and the U.S. Office for Civil Rights. Although most attention will focus on sex equity, other areas of possible discrimination that are prohibited under section 118.13, Wis. Stats., will also be discussed. It is intended that these guidelines will help ensure the following:
Philosophy The intent of most civil rights legislation is to ensure equitable treatment for minority groups and individuals who have been subject to discrimination. In Wisconsin, the Legislature enacted section 118.13, Wis. Stats., in an attempt to prevent discrimination in public schools on the basis of sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation, or physical, mental, emotional, or learning disability.
This statute can significantly enhance interscholastic athletic participation, an important component of education for thousands of boys and girls in Wisconsin. However, ensuring equity in athletics, particularly sex equity, is frequently hindered by stereotypic beliefs about what constitutes safe, appropriate, and acceptable athletic participation for boys and girls. The previously held supposition that only males should be involved in vigorous, competitive sports, often involving physical contact, has lessened, but not to the extent that girls' athletics have achieved a desired level of equity or equality of opportunity.
The spirit and intent of the statute, as it applies to interscholastic athletics, is to provide all boys and girls with the opportunity to participate in equitable athletic programs and activities at comparable levels of support. Nothing in section 118.13, Wis. Stats., or in Title IX, for that matter, requires comparable programs for males and females in athletics.
Both DPI and the WIAA are committed to the concept of separate athletic programs for boys and girls. On the surface, this seems to contradict civil rights decisions in which courts have consistently held that "separate but equal" is in fact unequal. In athletics, however, size, strength, and weight are often the qualifying factors for successful participation, and these factors continue to favor the average boy over the average girl. Consequently, if all sports activities were open equally to both boys and girls, the number of female athletes would be severely curtailed.
The best interests of both boys and girls in athletics seem to be served at this time by separate, comprehensive, comparable programs that are carefully organized and monitored to accommodate the interests and activities of both sexes. Comparable programs, according to DPI/WIAA philosophy, are those offering boys and girls the same or similar activities, with opportunities and resources of equal quality in the areas of coaching, provision of facilities and equipment, assignment of practice and game times, awards, publicity, and transportation. Cheerleaders, pompon squads, and pep bands have individual identities and add to the excitement and attractiveness of high school sports. Appearances at respective boys' and girls' contests must satisfy the same equity comparability standards as those just mentioned. The availability of concessions stands, booster activities, and so forth, cannot be ignored either.
In the matter of boys competing on girls' teams and girls competing on boys' teams, Title IX requirements and subsequent case law generally allow students to cross over only if there is no team for one sex and athletic opportunities for that sex have been limited in the past. In Wisconsin and many other states, this approach allows girls on boys' teams under certain conditions, but it does not allow boys on girls' teams. DPI/WIAA philosophy tolerates the apparent unfairness to boys in this situation only because the alternative would be more discriminatory. Both agencies monitor related state and federal case law on an ongoing basis. Future court findings will influence interpretations and determinations on this issue.
Athletic programs most successfully reflect the philosophy of equity when the people affected develop plans and policies. Typically, this includes school administrators, athletic directors, coaches, athletes, parents, and representatives of groups that perform at athletic contests. It is especially important to ensure adequate representation of both females and males in planning equitable athletic programs in Wisconsin.
Although most athletic equity problems should be prevented or solved at the district level, it should be emphasized that equity is guaranteed at several levels. Among the sources to be considered are the Fourteenth Amendment to the U.S. Constitution (equal protection), Title IX of the Education Amendments of 1972, the Wisconsin Constitution, section 118.13, Wis. Stats., PI 9, Wis. Admin. Code and the bylaws and rules of eligibility of the WIAA.
DPI and the WIAA are confident in the ability of educational decision makers to guarantee equitable athletic opportunities for all boys and girls in Wisconsin. This is consistent with the Wisconsin tradition of educational excellence and ensures no students are denied participation in activities for discriminatory reasons. WIAA member schools have successfully identified ways to provide greater levels of access to interscholastic athletic programs, and, more important, to afford all public school students with the opportunity to benefit from participation in athletics. A positive approach must continue if Wisconsin's sports offerings are to withstand the scrutiny of critical observers, and, more importantly, to afford all public school students the opportunity to benefit from participation in athletics.
General questions about equity in interscholastic athletics
The following questions and answers are intended to provide general information and guidance on questions that arise frequently. When dealing with a specific problem or question, the application and requirements of the law will depend on the particular facts. The following questions and answers are excerpts from the "Pupil Non-Discrimination Guidelines For Athletics" manual published jointly by the WIAA and DPI and available from either organization. Member schools also have copies of the manual which contains information regarding implementation and explantion of Federal Title IX law, Wisconsin State Statutes and Wisconsin Administrative code.
Question: Is gender the only category that is protected from discrimination in athletics?
No, as in all other aspects of K-12 public schooling in Wisconsin, students are protected from discrimination and harassment on the basis of sex and on the basis of the student's race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation, and physical, mental, emotional, and learning disability. Some specific rules apply in specific categories, based on federal and state court interpretations. These exceptions will be treated in some of the questions that follow.
Question: Does the law apply to all school athletic programs?
The law prohibits discrimination in admission to public schools, and in any curricular activity. The law also prohibits discrimination in any extracurricular activity, pupil services, recreational program, or other program or activity, approved or sponsored by the school board. The following factors are considered in determining whether a program or activity is approved or sponsored by a school board: the provision of direct or indirect financial support; the provision of tangible resources; intangible benefits such as lending recognition or approval to a program or activity; the selectivity of the school board in providing privileges and resources to various programs and activities; and whether the relationship is occasional and temporary or permanent and long term.
Question: If five programs are offered for boys and five for girls, are equity standards met?
Not necessarily. According to the rule implementing section 118.13, Wis. Stats., programs shall be compa-rable in type, scope, and support from the school district. If the school does not sponsor a comparable activity for girls, it cannot deny girls the chance to participate in the boys' activity. If there is interest in establishing a girls' team in a sport offered only to boys, the criteria used to initiate the boys' team should be applied to determine whether that expressed interest is sufficient for a separate girls' team.
Question: Why is there a disparity between the number of athletic offerings between women and men?
In counting and listing the sports offered, certain sports which do not have girls' teams are included (for example, football, hockey, wrestling). However, girls may participate on the boys' teams in these sports. Thus, while the listing or count may show a disparity in the number of sports offered, opportunities are available for girls to participate in these sports.
Question: What is the "test of proportionality" that we hear so much about?
Under a test originally developed by the U.S. Depart-ment of Health, Education and Welfare and continued by the Department of Education's Office for Civil Rights, which enforces Title IX, a school will be found to be in compliance with requirements for equity regardless of gender in athletic programs if it answers "yes" to any one of the following three questions:
1) Are interscholastic level athletic participation opportunities for male and female students provided in numbers substantially proportionate to their respective enrollments in the overall student popula-tion?
2) If the members of one gender have been and are underrepresented among interscholastic athletes, can the school district show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that gender?
3) If neither of the first two prongs may be satisfied, can an institution otherwise demonstrate that the interests and abilities of the members of that gender have been fully and effectively accommodated by the present athletic program?
Question: Are equal expenditures required for boys' and girls' programs offered in the same season, such as football and volleyball?
Title IX of the Federal Education Amendments of 1972 does not require equal expenditures for girls' and boys' sports in the same season or even if the sports are comparable, such as girls' basketball and boys' basketball. However, the expenditures must meet the needs of the respective programs. In the case of comparable sports, the expenditures must be equitable rather than equal.
Question: A school is planning to offer golf as a sport next year. A sign-up sheet has been posted on the athletic bulletin board, and boys' and girls' names are being accepted. Is the school proceeding in a manner acceptable to the WIAA?
Article VI, Section G, of the WIAA Constitution reads as follows:
"The Board of Control shall prohibit all types of interscholastic activity involving boys and girls competing with or against each other except (a) as prescribed by state and federal law and (b) as determined by Board of Control interpretations of such law."
If there is enough interest to sponsor only a boys' team, girls may not be denied the opportunity to try out for the boys' team. If girls make the team, they must play under the boys' rules, and they will also be entered in the boys' tournament series. If enough students sign up to sponsor a girls' team but not a boys' team, a girls' team may be established. However, boys will not have the opportunity to participate on the girls' team. See also, response to question 12.
Question: Is it legal for schools to administer athletic scholarships designated for 1) one sex, 2) one race, 3) one ethnic group, 4) one religion?
Athletic scholarships are offered to graduating athletes by post-secondary institutions. Those institutions may offer the scholarships by gender to individual athletes, which follows the separation of athletics by gender. High schools may cooperate fully, subject to WIAA rules, with providing appropriate information to colleges and universities and announcing the schol-arship awards. Public post-secondary institutions may not award athletic scholarships based on race, ethnic-ity, or religion.
GIRLS ON COMPARABLE BOYS' TEAMS
Question: A school sponsors both a boys' and a girls' tennis team. One very talented girl wants to compete on the boys' team instead of the girls' team. She feels the boys' team is more competitive, and she wants that experience to assist her in obtaining a major college tennis scholarship. Must the school allow this?
If the girls' tennis team has the identical opportunities (length of season, number of contests, scheduling similarities, tournament opportunities), she must be denied membership on the boys' team under WIAA rules.
GIRLS PLAYING ON BOYS TEAMS
Question: Can a female student go out for wrestling, hockey, or football and compete against other schools?
Case law has generally held that if a comparable activity is not sponsored for girls, an opportunity to make the boys' team cannot be denied, either in regular season or in tournament competition.
Question Can a pregnant girl be denied participation in athletics?
Federal and state statutes prohibit discrimination based on pregnancy. However, an athletic code may include pregnancy among other health-related factors that might affect eligibility for both boys and girls. The same criteria should be used to determine whether a pregnant girl should compete as are used to determine whether a student with appendicitis should compete. A pregnant girl should be treated the same as a student who has an injury or other physical condition that might affect eligibility to participate. If no policy exists for boys' participation, then no policy should exist for girls.
BOYS ON GIRLS' TEAMS
Question: Boys are not afforded the opportunity to play interscholastic volleyball or to participate in gymnastics within the sanctioned sports programs of the WIAA. Must a boy be allowed to participate on a girls' team?
The courts have generally held that because of past inequities in girls' sports programs it would jeopardize participation opportunities for girls to permit boys to compete on girls' teams. The U.S. Department of Education has interpreted the law to be permissive in this regard; that is, state athletic organizations may permit boys to play on girls' teams. However, the WIAA holds a philosophical position that agrees with many courts: boys, because of many more years to develop skills and strength, will in many cases take over girls' teams and girls' opportunities will be limited.
Question Why are boys not allowed to try out and compete in a traditional "girls' sport" if there is not a comparable program for boys, as girls are allowed to try out and compete in a traditional "boys' sport" if there is no comparable program for the girls?
See earlier responses.
Question: A school is sponsoring track and field teams for boys and for girls. One girl, however, wants to compete in the pole vault which presently in Wisconsin is a boys-only event. Should this be allowed?
Yes, the National Federation Track & Field Rule Book, which governs all interscholastic competition, lists pole vault as a girls' event. However, until Wisconsin adopts pole vault as a girls' event, any girl wanting to compete should be allowed membership on the boys' team for this event.
A student is limited to participating in a maximum of four events. Therefore, pole vault counts as one of her events and any points earned are credited to the boys' team. She then has three remaining events left for participation on the girls' team.
GIRLS AND WEIGH-INS
Question: Wrestling rules require a stripped shoulder-to-shoulder weigh-in. If girls participate, what provision must be made?
The proper procedures to use for weighing-in female wrestlers is to have a female weigh the wrestler in private. The female need not be a registered official but should be someone on the faculty of one of the participating schools. The ultimate responsibility rests with the school for which the student is wrestling. If, however, the school with the female wrestler is travel-ing and has assurance from the host school that a female for weighing-in will be provided, it may be handled in that fashion. If the host school cannot or does not wish to provide someone to monitor the weigh-in, it is the responsibility of the girl's school to bring a female with them to handle this responsibility.
GIRLS PARTICIPATING ON BOYS' TEAMS
Question: In what sports are girls or young women allowed to compete?
Girls are allowed to compete in any sport in which there is not a comparable athletic opportunity within the district. If a school has a girls' basketball program, a girl cannot go out for the boys' team. However, if there is a boys' basketball team and not a girls' team, any girl could then go out for the boys' team. That is why you will see girls participating in hockey, wrestling, and football.
Question: If a girl participates in football, wrestling, or hockey, are any rules altered?
With the exception of the weigh-in provisions for wrestling and some handicapping conditions in certain sports, there are to be no alterations in wrestling, hockey, or football rules to accommodate any participant.
Question: What happens if an opposing school refuses to provide a wrestling opponent or if a scheduled opponent refuses to wrestle a girl?
If a school refuses to provide a wrestler, or if the wrestler refuses to compete against a girl, the school forfeits that match and the girl is declared the winner.
Question: A girl tries out for wrestling. The school doesn't want to have any of the boys wrestle her in practice. Is it reasonable to have the coach work out against the girl?
The coach must provide the same practice opportunities for the girls as for other team members. All athletes must participate in practice activities as directed.
Question: The school sponsors a boys' cross country team but has insufficient interest to provide a girls' team. One girl has been running with the boys' team. Where will she participate in a tournament?
She will participate in the boys' series. Case law has generally held that if a comparable activity is not sponsored for girls, participation in the boys' activity cannot be denied, either in regular season or in tournament competition.
Question: A school does not have a tennis, golf, swimming, or soccer team for girls. Must an interested girl be permitted to participate on the boys' teams?
The only time participation on a boys' team can be denied to a girl is when a comparable girls' team is sponsored. Participation includes trying out and competing.
Question: Does a girl have any additional physical examination requirements or parental waiver requirements if she desires to participate in wrestling, hockey, or football?
The requirements for participation are the same for all eligible students. An additional medical documentation form or parental waiver cannot be required for a girl prior to her participation.
Question: Why are softball and baseball not considered comparable sports for girls and boys, respec-tively?
The Supreme Court of Appeals of West Virginia ruled in favor of the plaintiff (the female student seeking opportunity) on this issue. The court noted from the record in this case that the "games of baseball and softball are not substantially equivalent" and distinguished the "superficial similarity" between the games by citing differences, including equipment, skill levels, and dimensions of the playing surface. The court concluded with the assertion that it was dealing with the case in which an opportunity is given to try out for the team. Whether particular sports are comparable depends upon the characteristics of the sports being compared.
Question: A school sponsors a varsity, junior varsity, and freshman team in boys' basketball but only a varsity and junior varsity program in girls' basketball. Is this acceptable?
The criteria for offering interscholastic competition within a sport must be the same for boys and girls. It should be locally developed and include, among other factors, interest, abilities, and available competition. The law requires comparability in sport offerings. If the scope or depth of the girls' basketball program is not comparable to the boys' basketball program because, for example, there is no girls' freshman bas-ketball, freshman girls must be given the opportunity to play on the boys' freshman team.
Question: A girls' program in a given sport has to be offered if there is already sufficient interest, and there is already a boys' team in that sport. What constitutes sufficient interest?
The criteria used to establish boys' programs should also be used to determine whether or not there is sufficient interest to initiate a girls' program.
Question: How do I start a team? For example, there is a boys' golf team and no girls' team. Furthermore, there are more boys' teams than girls'. What steps do I follow to make a proposal?
The first step is to survey your students to find out if there is a desire to participate in the particular sport you are looking to start. Once a need has been established, the next step is to present your findings to the administration and allow them a chance to study existing programs and how they will meet the needs of the newly identified sport. Due to budget constraints adding sports is very difficult; however, the law does not allow the excuse of lack of funds to stand in the way of addressing equity issues.
TEAM SELECTION AND RECOGNITION
Question: How does a coach decide who gets on the team and who plays?
Each coach sets the standards for their team as well as the goals and objectives for each level within the team (varsity, junior varsity, and freshman). These standards should be communicated to parents and athletes before the season starts, thus providing everyone with knowledge of how the teams will be formed and what players and parents can expect from the coach and program. You usually see different goals and objectives at different levels within a program. How a freshman basketball team is formed and playing time established at that level is usually different from the varsity.
Question: How does a coach decide who earns participation letters?
The award system for each sport is a result of an individual coach's personal philosophy or that of the school. The award system should be communicated to parents and athletes before the season starts.
Question: Is cheerleading considered a sport?
Cheerleading is not recognized by the WIAA as an interscholastic sport. It cannot be used as a factor in determining equal opportunities for athletic partici-pation. The provision of cheerleaders at games, however, must be equitable for teams of both sexes.
Question: We are attempting to meet equity requirements by providing cheerleader support at both girls' and boys' athletic contests, however, girls' coaches and/or players do not want cheerleaders at their games. What can we do?
Positive communication and gradual implementation helps all parties involved to accept this as law. Con-centrate on the positive aspects of 118.13 that boys have traditionally experienced. Some schools have constituted a committee with coaches, players, and cheerleaders involved in planning implementation.
Question: Presently we have cheerleaders for boys' soccer in the fall. In order to comply with 118.13, Wis. Stats., we need cheerleaders for girls' soccer in the spring. This additional squad extends the season to the whole school year. What can be done?
In order to be equitable for the cheerleaders, schools must recognize that lengthening the season involves additional budget, coaching staff, and uniforms. If budgetary constraints prohibit hiring additional cheerleading coaches or lack of student interest makes provision of cheerleaders in the spring impossible, the elimination of soccer cheerleaders would be the best alternative.
Question: Our principal is interpreting "comparable sports" to mean that because we are cheering for boys' football in the fall, we now are being asked to cheer for girls' volleyball during the same season. Is his interpretation correct?
The definition of "comparable" in this document refers to sports using "similar skills." Using this definition, girls' volleyball is not comparable to football and should not require cheerleaders. In addition, volleyball does not lend itself to having cheerleaders present on the sidelines and has not historically used cheerleaders.
Question: I want to provide equal opportunities for all races in our school to participate in the cheer/pompon programs. However, only Caucasian students have expressed interest in trying out. What are my responsibilities at this point?
Active recruiting with the help of students, teachers, and even community members may increase the interest level of these students. They need to know, as do all students, that they are welcome and will be treated fairly.
Question: Active recruiting has sparked an interest in my cheer/pompon program by all races, however, only Caucasian students have met the skill and/or academic requirements for placement on the squad. Have I met my obligations even though no minority students were selected?
You may want to examine the possibility of pre-try-out clinics that include students of color or a special effort to recruit. In addition, you may want to assure your-self that there are no unconscious cultural barriers in the selection critiera used or in the application of the selection criteria in the try-outs.
Question: Our school has only one varsity basketball cheerleading/pompon squad with one coach. How can we schedule to cover all boys' and girls' games?
Section 118.13, Wis. Stats., requires "equitable" support for comparable sports. This does not neces-sarily mean "total" support from cheerlead-ers/pompons. If your schedule traditionally had 20 games, keep the 20-game limit but split equally the coverage at girls' and boys' games. Coordination with other conference schools would be helpful to ensure consistency. Careful consideration of any solution should take into account that cheerleaders, pompon squads, and their coaches should have a reasonable game schedule comparable to other athletes.
Question: What are the requirements for bands playing at equal numbers of boys' and girls' athletic contests?
There is no requirement under s.118.13 that a pep band play at athletic contests. However, once a school decides that it wants pep bands to play at contests, the school must ensure that music support is equitable at comparable girls' and boys' games. This does not mean that the band is required to play at all boys' and all girls' basketball games, for example. In fact, this is likely to be too many nights per week for a limited number of band members to perform. The school should adopt a plan at the beginning of the school year that establishes the number of contests per season for boys' and girls' sports. Please note that the school need not provide bands for those sports that do not lend themselves to pep band performance, such as gymnastics, even if that means an imbalance of performances in that season. Support can be provided in other ways for those types of sports.
SATISFYING THE NEED FOR SUPPORT
Question: How should cheerleaders and bands be assigned to games to be equitable between girls' and boys' contests?
Athletic schedules should be reviewed and schedules established with an equal number of contests represented for both boys' and girls' events. If there is a problem filling out cheerleading squads or pep band numbers, districts should look into bringing up JV cheerleaders to fill in for an evening, or lower level band members to sit in for an evening to fill out the needed numbers. Basically both boys' and girls' squads should have the same number of contests represented by cheerleaders, pompon, or pep bands. However, JV cheerleaders or lower level band members should not be assigned to fill in only at boys' games or only at girls' games; they should participate in an equal number of boys' and girls' games.
Question: What impact can booster clubs and related fund raising have on athletic programs?
Section 118.13 Wis. Stats., states that programs should be of the same type, scope, and support from the school district. Booster club financial contributions can affect program opportunities. School district policy on gifts must assure school control of program support, and encourage comparable support.
Question: Is it appropriate to use an American Indian or other ethnic mascot, logo, or nickname?
In 1992, the Wisconsin Attorney General stated in an opinion requested by the state superintendent that "the use of American Indian mascots, logos, and nick-names could cause an American Indian harm by rein-forcing a stereotype and/or creating an intimidating or offensive environment, thus perpetuating past discrimination." Under this interpretation of the law, the use of an American Indian logo, nickname, or mascot could be a violation of state law. However, the law does not presume that all American Indian logos, nicknames, or mascots are unlawful. In each case, the logo, nickname, or mascot in question (or its use) should be examined to determine whether it is offen-sive or negative, or creates an offensive or intimidating environment.
In 1994, the state superintendent urged school districts to review their logos and mascots in light of the Attorney General's opinion and to determine if a change was in order. School districts using mascots, logos, and nick-names which have single gender or ethnic group connotations could be in violation of s. 118.13 and PI 9.
Meeting Special Needs of Athletes
Question: My child has a disability and wants to participate in sports. What must the school do to permit her participation?
The law requires that disabled students be afforded an equal opportunity to participate in extracurricular activities, including sports. The steps, if any, the school must take to permit a disabled student to participate in a sport will depend on the specific facts of each case, including the nature of the disability and the particular sport.
Question: My child is disabled and is in a special educa-tion program. Her education plan calls for par-ticipation in athletics. If she wants to play on a team, must the district place her on a team?
No. The school should take steps to provide a disabled student an equal opportunity to participate in athletics with nondisabled students to the maximum extent appropriate to the needs and abilities of the disabled student. The student may not be denied the opportunity to try out for a team, or be excluded from a team, because of her disability. However, decisions regarding the selection of team members, position played, level of participation, and playing time, all involve the exercise of judgment and a great degree of discretion by the coach.
Administrative Efforts to Equalize Athletic Opportunity
Question: The girls' swimming and diving team competing in the fall has only two coaches, but the boys' swimming and diving team competing in the winter has three coaches. Is this acceptable?
The criteria for assigning coaches to a sport should be the same for both girls and boys. It should be locally developed and include, among other factors, interest, abilities, number of participants, and available competition.
COMPARABLE FUNDING OF ATTIRE
Question: The boys baseball team is provided school-issued practice uniforms. The newly organized girls' softball team must provide all of their own practice attire. Is this acceptable?
No. If the boys' baseball team is provided school-issued practice uniforms, the same should be provided for the girls softball team.
EQUITABLE USE OF FACILITIES
Question: When a school has limited facilities for winter sports programs, is it reasonable to have the girls practice in the morning before school?
If facilities are limited and necessitate varied practice times, girls' and boys' teams should alternate practice schedules so both have equal access to the more convenient times. We advise schools to develop schedules on a seasonal basis.
Question: Is there an accepted standard to determine the time of year when a program should be spon-sored?
It is difficult to respond to this question. When the WIAA assumed responsibility for the governance of girls' athletics, a number of programs had been established and were continued in their existing calendar slot. The U.S. District Court in Montana addressed this issue in 1986 and stated that a change in seasonal placement will not facilitate the goal of maximizing participation in athletics. Because five of the ten sports sponsored for girls are offered in the fall, seasonal placement is an acknowledged concern of the WIAA and DPI and continues under study.
CONFERENCE EQUITY PLAN RESISTANCE
Question: Our school officially wants unilaterally to enact a specific measure to achieve a greater degree of equity. The schools in the conference to which we belong wouldn't adopt a majority position enabling us to implement our desired objective. What can we do?
One way to enact a change to promote equity is to ask that the issue be placed on a conference meeting agenda. Addressing the issue in the presence of DPI and/or WIAA representatives may result in the enactment of the desired change in rules or policies. Another option is for residents of the other school districts in the conference to file complaints with the school districts. The local complaint process is discussed in question 50, below, and in appendixes B and C.
EQUITABLE SCHEDULING OF CONTESTS
Question: Must games be scheduled so that the more favorable nights of the week are equally available to girls as they are to the boys?
Yes. Schools and conferences should take the initiative in establishing contest schedules so that girls' and boys' teams have an equal opportunity to play on nonschool nights and so that one program does not always have its games scheduled on nights followed by school days.
Question: Must locker rooms, practice facilities, competition facilities, and medical and training facili-ties and services be comparable for both boys and girls?
Yes. Programs offered for boys and girls should provide facilities, supplies, and equipment that are compara-ble in quality and availability.
Making a Complaint About Inequity in Athletics
Question: What can I do if I have a complaint about inequality in athletics?
The state pupil nondiscrimination law requires that each school board adopt a written pupil nondiscrimi-nation policy and complaint procedure. Each school board is also required to designate a school district employe to receive complaints about discrimination in school programs or activities. You may also try to resolve any problems informally, by discussing it with coaches, teachers, supervisors, or school administrators. If you are unable to have your concerns addressed informally, you may file a complaint.
The nondiscrimination policy and complaint procedure should be made available to you upon request. To file a complaint, follow the process described in the complaint procedure. If you have gone through all the steps in the complaint procedure and are not satisfied with the outcome, you may file an appeal with DPI within 30 days. You may also file a complaint with the U.S. Department of Education, Office for Civil Rights (OCR). For this region, the OCR office is located at 111 North Canal Street, Chicago, IL 60606. The telephone number is (312) 886-8434.
Question: What is the proper complaint procedure that a school should have?
There is no one proper complaint procedure or policy. There are a few points which should be considered in the development of a district complaint procedure. The complaint procedure must be written. It must provide for written acknowledgment of a complaint within 45 days of the date it is filed, and for a final written deci-sion by the district within 90 days of the date a complaint is filed. Parents, athletes, coaches, administrators, and other interested parties should be included in the development of policies and procedures. The policies and procedures should be reviewed by the school board and communicated to parents and athletes before the beginning of each season.
Question: I feel my child is being discriminated against, but I don't want to file a formal complaint because I am afraid of retaliation against my child. How can I get the discrimination to stop?
If you are uncomfortable reporting a problem due to concerns about retaliation, you are greatly hindered in seeking elimination of the practice. You might talk with other parents, looking for others with similar concerns. If you can find others willing to take a similar stance, it shows there may indeed be a problem administration needs to address. Another possibility would be to wait for the season to be over and then present your concerns. To do nothing allows the practice to continue.
A joint publication of the Wisconsin Department of Public Instruction and the Wisconsin Interscholastic Athletic Association, the Pupil Nondiscrimination Guidelines for Athletics reviews implementing Section 118.13 of the Wisconsin statutes and PI 9 of the Wisconsin Administrative Code.
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